The ACA birth-control controversy, made simple

Posted Wed, July 15th, 2015 12:04 am by Lyle Denniston

Commentary

Amid widening claims that religious liberty in America is under siege, the Supreme Court over the past year and and a half has reacted eight times to one of the most intense and emotionally charged conflicts within that broader controversy. Only once has the Justices’ reaction to that particular conflict led to a full-scale decision, and yet all of its actions, taken together, do stand for something.

This is the controversy over the contraceptive, or birth-control, mandate in the Affordable Care Act – a high-stakes legal feud that has been unfolding in scores of lawsuits across the country. It has been running for five years, and so is further along than the just-beginning conflict over the impact on religious belief of the Court’s same-sex marriage ruling last month.

The opposite sides in the birth-control dispute for years have been talking past each other about what the Supreme Court has done about that so far, and what it means, and both sides continue to try to persuade the Court to see the controversy their way.

There is a lot involved, but let’s try to make it simple.

The Supreme Court has attempted to fashion something that it thinks of as a compromise, giving something to each side. That, in fact, is the very heart of what the Court did last year in its one fully considered ruling in this series — the decision in Burwell v. Hobby Lobby Stores. But the depth of disagreement was newly apparent as the government and the owners of the Hobby Lobby chain of arts-and-crafts stores resumed fighting in lower courts over how to carry out the Justices’ decision, and the government keeps rewriting the rules with scant chance of closing the gap between the two sides.

Here is what the Court thought the compromise should be:

For the government, the Court appeared to assure that the ACA mandate providing free access to birth-control drugs and techniques would reach millions of women of child-bearing age, no matter for whom they work or where they go to school or where they get served by a charity. For religious institutions — non-profits operating colleges, hospitals, and charities, as well as for-profit businesses whose owners are religiously devout — the Court appeared to assure that they do not have to obey the mandate themselves, if they have religious objections to it — as hundreds and maybe thousands of them do.

What is starkly apparent, after the Supreme Court’s eight actions and a string of rulings by lower federal courts, is that there is very little reason to expect the two sides to find common ground on how this controversy should come out in the end. So far, four new appeals have been filed at the Supreme Court, in pursuit of that outcome, and more are definitely on the way. It seems quite likely that the Court will take up the issue again at its next Term.

The government in implementing the ACA has been determined, sometimes stubbornly so, to make sure that female employees and students have access to birth control, free of charge, even if their employers or college administrators totally object, for religious reasons, and part of that determination comes from the confidence of officials in Washington that such coverage can be arranged without intruding on anyone’s faith. Just ask for an exemption, the government promises, and it shall be given. How, it has wondered, can officials know that a religious group objects if they don’t say so?

But the religious groups that are providers of health insurance for their employees or students insist, sometimes stubbornly so, that there is simply no way that such plans can be rearranged to provide birth-control access without violating the sponsors’ religious beliefs. Even, they say, when the government takes over their plans, and dictates what they will cover, there is still no break from the sin of facilitating the use of the prohibited methods. The only way they can protect their faith, they say, is to do nothing at all in response to the mandate, and thus face millions of dollars in fines, or else to shut down their health plans altogether — so everyone loses. And, they add, even closing their plans would violate their faith principle that they should take care of their own.

Although it is often quite apparent that each side is deeply suspicious of the other side’s motives, it goes too far to assume that the government is hostile to faith and, similarly, it goes too far to assume that the religious groups are trying to regiment the private lives of their employees and students. The government notes that it has revised its official rules several times, each time broadening the available religious exemption; so, it asks, why not take advantage of that? And the religious groups note that they would have no objection if the government itself were the provider of contraceptives; so, they ask, why not just leave us out of it?

These so-far unbridgeable differences, of course, began to emerge soon after Congress passed the Affordable Care Act in 2010, and grew more intense when the government began issuing specific rules to put the Act into effect. The ACA does not refer to birth control directly, but does require existing group health plans to provide “essential coverage,” which includes “preventive services” for women, free of charge. Congress told the government to decide how to work that out.

In general, the resulting rules have meant that women must have access, without paying anything, to all of the contraceptives that have the approval of the federal Food and Drug Administration. Because many religious individuals and institutions, especially those affiliated with the Roman Catholic faith, believe that at least some forms of birth control destroy human life, which they regard as sinful, the ACA mandate and the government rules have been challenged in more than a hundred lawsuits. About half were filed by non-profit entities which hold that religious view, and the remainder by for-profit companies whose owners object for the same reason.

The government rules gave the non-profits a way to claim an exemption, but not the for-profit businesses. It was in one of the for-profit firms’ cases, the Hobby Lobby case, that the Supreme Court ruled last year that the for-profit firms, too, had to be allowed to claim an exemption. That decision also spoke more broadly about the interaction of the problem of religious objection and the goal of assured access to birth control.

In fact, all of the seven other actions by the Court, none of which was a final decision, have involved non-profit institutions. Here is what the Court has done in those seven: two were orders by individual Justices temporarily delaying the contraceptive mandate until the Court could act further after new legal papers were filed; two were orders of the full Court telling lower courts to reconsider prior rulings; and three were orders by the full Court directing the kind of compromise that appeared to lay behind the Hobby Lobby ruling.

Each of those actions has been proclaimed by lawyers for the non-profits as victories, even if only temporary ones, because each had the effect of interrupting a lower court decision enforcing the government rules on the mandate.

The most significant of those actions were the three that told each side what it must do under the mandate, in response to religious objections by non-profits operating health plans. In cases involving an order of nuns in Colorado (Little Sisters of the Poor), a religious college in Illinois (Wheaton College), and a group of Roman Catholic institutions in Pennsylvania (the Zubik case), the Court blocked the government from compelling the objecting institution itself to obey the mandate, as long as that institution notified the government — even by a brief, informal letter — of its objection.

That duty to notify the government appeared to be, or was said explicitly to be, a condition of blocking any duty by the institution itself to provide the ACA contraceptives. In effect, the orders said: No notice of an objection, no protection. But each order also seemed to be saying that, with the objecting institutions’ notices in hand, the government was free to arrange for that institution’s employees or students to have access, without cost, to “the full range of FDA approved contraceptives.”

Just last week, three government departments in Washington — Health and Human Services, Labor, and Treasury — issued final rules to carry out the ACA contraceptive mandate. Some were partial rewrites of earlier rules for non-profits, some were new rules for for-profit institutions owned by religious individuals. Saying explicitly that the rules were enforcing what the Court had directed in the Wheaton College case (non-profits), and what the Court had set the stage for in the Hobby Lobby decision (for-profits), the departments ordered these binding rules into effect as of Tuesday, July 14.

Almost no observer of this legal saga expects those regulations to be the end of the matter. The main reason for that skepticism is that the rules do keep the religious institutions in the mix: they have to do something to get the protection they want. The health plans that will, from then on, provide the birth control and methods will remain their own, the institutions note, and the government will simply be “hijacking” them in a way that keeps the institution as sponsor and, besides, violates the legal arrangements for operating such a plan. This, then, keeps in place, the institutions argue, the burden that the ACA rules impose upon their religious beliefs.

That is basically a legal as well as a theological and moral argument, and, in its legal form, is a claim under the federal Religious Freedom Restoration Act that the institutions’ lawyers have been using in the court cases. They had remarkable success in the federal trial courts — the district courts — where they won more than eighty percent of the time. But, when the cases have reached the federal appeals court level in the wake of the Supreme Court’s Hobby Lobby ruling, the institutions’ objections have been turned aside each time, so far. Five courts of appeals, not all by unanimous votes, have decided that the notice the institutions give the government does not “trigger” access to birth control; it is the ACA that does so. That has been the result so far in the Third, Fifth, Seventh, D.C. Circuits — and just on Tuesday, the Tenth Circuit. Other cases are apparently nearing the release of rulings in other federal appeals courts.

The Hobby Lobby case had gone through the lower federal courts in the first round, went to the Supreme Court, was decided there, and then returned to the district court level. The Supreme Court’s ruling did not wind things up, because the Justices’ rulings are usually not self-enforcing. What happened back in the district court illustrates well why the entire controversy over ACA contraceptives continues to run on.

Lawyers for the arts-and-crafts company asked U.S. District Judge Joe Heaton of Oklahoma City to put the Justices’ ruling in the company’s favor in effect by issuing a simple order to block enforcement of the mandate in the ACA itself as well as the government regulations, and not just as they applied to Hobby Lobby. The government countered that the judge should only bar enforcement of the law and the existing regulations as applied to Hobby Lobby.

The company wanted to avoid being drawn into future legal wrangling over any new regulations that the government might issue under the mandate and seek to apply to Hobby Lobby, and the government wanted to avoid having that future option foreclosed as to Hobby Lobby. Judge Heaton sided with the government, saying that Hobby Lobby had won in the Supreme Court on the ACA rules as they existed at the time. Moreover, the judge said, he was concerned about prematurely ruling on potential future changes in the legal obligations under ACA. He thus confined his order to the regulations as they existed.

That was last November. At the time, the government had not yet issued new rules that would require for-profit companies with religious objections to birth control to notify the government of their views as a condition for their exemption from the mandate. The three government departments filled that gap last week, so Hobby Lobby now faces the prospect that federal officials will now move to arrange for the retail chain’s female employees to have access to birth control, at no cost. In issuing the new rules, the government agencies said they would reach all companies that had sued the government over ACA contraceptives.

The focus of the overall controversy now shifts back to the appeals courts that have yet to decide, and to the Supreme Court, where the new appeals have started arriving.

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